Embed Size (px)
Citation preview
REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
REVIEW PETITION (CIVIL) NOS.18351836 OF 2020 IN
I.A. NO.183249 OF 2019 IN
SPECIAL LEAVE PETITION (CIVIL) NOS.3103731038 OF2016
ABDUL AHAD AND ORS. ...PETITIONER(S)
VERSUS
UNION OF INDIA AND ORS. ...RESPONDENT(S)
WITH REVIEW PETITION (CIVIL) NO.19881989 OF 2020
INI.A. NO.183249 OF 2019
IN SPECIAL LEAVE PETITION (CIVIL) NOS. 3103731038 OF
2016
J U D G M E N T
B.R. GAVAI, J.
1. The review petitioners have approached this Court
seeking review of the order passed by this Court dated
20.7.2020 thereby dismissing the Special Leave Petition (Civil)
1
WWW.LIVELAW.IN
LL 2021 SC 395
Nos. 3103731038 of 2016 filed by Glocal University, Glocal
Medical College, Super Specialty Hospital and Research Centre
(hereinafter referred to as ‘Glocal Medical College’) and Abdul
Waheeb Education and Charitable Trust (hereinafter referred to
as ‘original writ petitioners’).
2. The review petitioners were not a party to the said
petitions. They were admitted in 1st year Professional MBBS
course for the Academic Session 20162017 in Glocal Medical
College, which was affiliated to the Glocal University, a deemed
University.
3. The bare necessary facts giving rise to the present
review petitions are thus:
4. The review petitioners appeared in the National
Eligibilitycum Entrance Test (hereinafter referred to as
‘NEET’), 2016 and qualified the same. According to the review
petitioners, therefore, they became eligible to get admission in
MBBS course.
2
WWW.LIVELAW.IN
LL 2021 SC 395
5. Vide Notification dated 31.8.2016, the State of Uttar
Pradesh issued a direction for conducting centralized
counselling for admission to MBBS/BDS course in all
colleges/universities in the State of Uttar Pradesh, including
private colleges and minority institutions and further
prescribed the schedule and procedure for counselling,
reservation, eligibility criteria for admission, etc.
6. Vide another Notification dated 2.9.2016, the State of
Uttar Pradesh directed that 50% of the sanctioned intake of
private institutions shall be reserved for students who had
domicile of State of Uttar Pradesh. The said direction was
issued in respect of all the private institutions (excluding
minority institutions) after deducting the pool of 15% for All
India quota.
7. The said Notification dated 2.9.2016 came to be
challenged before the High Court of Allahabad by way of Writ
Petition No.20575 of 2016 and other connected writ petitions.
The said petitions were decided on 15.9.2016 by the Division
3
WWW.LIVELAW.IN
LL 2021 SC 395
Bench of the Allahabad High Court. The order dated 15.9.2016
passed by the Division Bench of the Allahabad High Court
came to be challenged by the original writ petitioners before
this Court by way of Special Leave Petition (Civil) Nos. 31037
31038 of 2016.
8. It appears that in the interregnum, the original writ
petitioners had conducted their private counselling despite
Notifications issued by the State of Uttar Pradesh regarding
common counselling. It further appears that in the meantime,
some petitions for special leave to appeal also came to be filed
by some of the students being SLP(C) No. 28886 of 2016. By a
common order passed in the petitions for special leave to
appeal, including the one filed by Madhvi Goel & others [SLP(C)
No.28886 of 2016] and the one filed by Glocal University &
others [SLP(C) No.3103731038 of 2016], this Court passed the
following order on 20.3.2017:
“As an interim measure, it is directed thatthe students prosecuting their studies in thepetitionerUniversity in S.L.P. (C) Nos.3103731038 of 2016, may appear in the
4
WWW.LIVELAW.IN
LL 2021 SC 395
examination, but their results shall not bepublished. Needless to say, no equity shallbe claimed on the basis of the presentinterim order.”
9. It further appears that in the meantime, the Medical
Council of India (hereinafter referred to as ‘MCI’) issued a
discharge letter dated 27.1.2017 to the Glocal Medical College
and directed to discharge 67 students admitted by it, whose
names did not figure in the list supplied by the Director
General of Medical Education & Training (hereinafter referred to
as ‘DGME’).
10. The said order dated 27.1.2017 of MCI came to be
challenged by Glocal Medical College in this Court by way of
Writ Petition (Civil) No. 411 of 2017. This Court vide order
dated 18.9.2017, while disposing of the said petition with
certain directions, observed thus:
“The students who have been admitted inpursuance of the letter of permissiongranted for the year 20162017 shall bepermitted to continue their studies.”
5
WWW.LIVELAW.IN
LL 2021 SC 395
11. According to the review petitioners, they appeared for
First Year Professional MBBS examination and cleared the
same. However, Glocal Medical College did not conduct the
examination for the 2nd year MBBS and further the classes and
practicals were also suspended by the College. According to the
review petitioners, this gave them a cause of action to file Writ
Petition No.19399 of 2019 before the Allahabad High Court.
According to the review petitioners, only during the hearing of
the said petition, they came to know about the discharge order
dated 27.1.2017 issued by MCI.
12. The review petitioners therefore filed writ petition being
Writ Petition No.26367 of 2019 before the Allahabad High Court
assailing the order of MCI dated 27.1.2017. The Allahabad
High Court disposed of the said writ petition with liberty to
approach this Court.
13. The review petitioners therefore filed Writ Petition (Civil)
No.1287 of 2019 before this Court challenging the discharge
order, but the same was dismissed with liberty to file an
6
WWW.LIVELAW.IN
LL 2021 SC 395
application for intervention in the pending Special Leave
Petition (Civil) Nos. 3103731038 of 2016 filed by the original
writ petitioners, as stated above. The review petitioners
therefore filed Intervention Application being I.A. No.183249 of
2019 in the said Special Leave Petition (Civil) Nos. 3103731038
of 2016. By the order under review dated 20.7.2020, the
Special Leave Petition (Civil) Nos. 3103731038 of 2016 as well
as Intervention Application being I.A. No.183249 of 2019 came
to be dismissed by this Court.
14. Seeking review, the present Review Petitions are filed
by the review petitioners. This Court on 6.10.2020 passed the
following order in the present Review Petitions:
“After carefully examining the ReviewPetitions we are of the considered view thatthe application for hearing in the open Courtdeserves to be allowed.
Delay condoned.
Issue notice.
List the Review Petition in Court.”
7
WWW.LIVELAW.IN
LL 2021 SC 395
15. Accordingly, we have heard the learned counsel for the
parties in the Court.
16. We have extensively heard Shri Neeraj Kishan Kaul,
learned Senior Counsel appearing on behalf of the review
petitioners, Shri Dhawal Mohan, learned counsel appearing on
behalf of MCI and Shri Ankit Goel, learned counsel appearing
on behalf of the respondent – State of Uttar Pradesh.
17. Shri Neeraj Kishan Kaul, learned Senior Counsel
appearing for the review petitioners would submit that the
review petitioners were duly qualified to be admitted inasmuch
as, they had cleared the NEET examination. He further
submitted that the review petitioners were admitted through
the counselling conducted by the Glocal Medical College. Not
only that, but they have also cleared the 1st year and 2nd year
examination. It is therefore submitted that it will not be in the
interest of justice to throw the review petitioners at this point of
time.
8
WWW.LIVELAW.IN
LL 2021 SC 395
18. As against this, learned counsel for MCI as well as
learned counsel for the State of Uttar Pradesh submitted that
the review petitioners were admitted by backdoor entry. It is
submitted that their admission is the result of collusion
between the Glocal Medical College and the review petitioners.
It is further submitted that Glocal Medical College, being very
well aware about the Notification dated 22.8.2016, had
conducted private counselling, which was not permissible in
law and as such, the review petitioners, who entered through
backdoor entry, are not entitled to any equitable relief.
19. It will be relevant to refer to the following paragraph of
Notification dated 22.8.2016:
“1. After due consideration and incontinuation to the aforesaidnotification dated 20.08.2016,decision has been taken for gettingconducted counselling of universitiesof private sector/minoritiesuniversities of private sector/deemeduniversity of private sector throughcombined counselling boardconstituted according to above.”
9
WWW.LIVELAW.IN
LL 2021 SC 395
20. The said Notification dated 22.8.2016 came to be
challenged by various petitioners including Glocal University
before a Division Bench of the Allahabad High Court. The
Allahabad High Court by an elaborate judgment dated
15.9.2016 found no fault with the Notification issued by the
State of Uttar Pradesh prescribing centralized counselling for all
institutions for admission to MBBS/BDS course in the State,
based on NEET 2016. It will be relevant to refer to the
following observations in the operative part of the judgment of
the Allahabad High Court dated 15.9.2016, which read thus:
“(i) Subject to what has been heldhereinabove, the impugned ordersprescribing a Centralized Counsellingfor all institutions for admission toMBBS/BDS medical courses in theState based on NEET 2016, do notsuffer from any error.
(ii) Minority institutions shall be allowedto admit the students of theircommunity based on CentralizedCounselling held by the State on thebasis of NEET 2016, to the extentpermissible, but, without deviating
10
WWW.LIVELAW.IN
LL 2021 SC 395
from the merit of such students asreflected in the NEET list 2016, so asto subserve their minority statusunder Article 30(1) of theConstitution of India.”
21. It could thus clearly be seen that though minority
institutions were allowed to admit the students of their
community based on Centralized Counselling held by the State
on the basis of NEET 2016, the same was to be done without
deviating from the merit of the said students.
22. Though Shri Neeraj Kishan Kaul, learned Senior
Counsel, tried to submit that the Notification dated 22.8.2016
is only an administrative instruction and therefore not binding,
we are unable to accept the same.
23. It will be relevant to refer to the following observations
of this Court in the case of Modern Dental College and
Research Centre and others v. State of Madhya Pradesh
and others1:
1 (2016) 7 SCC 353
11
WWW.LIVELAW.IN
LL 2021 SC 395
“168. Having regard to the prevailingconditions relating to admissions in privateprofessional educational institutions in theState of Madhya Pradesh, the legislature inits wisdom has taken the view that meritbased admissions can be ensured onlythrough a common entrance test followed bycentralised counselling either by the State orby an agency authorised by the State. Inorder to ensure rights of the applicantsaspiring for medical courses under Articles14, 15 and 16 of the Constitution of India,legislature by the impugned legislationintroduced the system of common entrancetest (CET) to secure meritbased admissionon a transparent basis. If private unaidededucational institutions are given unfetteredright to devise their own admission procedureand fee structure, it would lead to situationwhere it would impinge upon the “right toequality” of the students who aspire to takeadmissions in such educational institutions.Common entrance test by State or its agencywill ensure equal opportunity to allmeritorious and suitable candidates andmeritorious candidates can be identified forbeing allotted to different institutionsdepending on the courses of study, thenumber of seats and other relevant factors.This would ensure twin objects:
(i) fairness and transparency, and(ii) merit apart from preventing
maladministration.
12
WWW.LIVELAW.IN
LL 2021 SC 395
Thus, having regard to the larger interest andwelfare of the student community to promotemerit and achieve excellence and curbmalpractices, it would be permissible for theState to regulate admissions by providing acentralised and singlewindow procedure.Holding such CET followed by centralisedcounselling or singlewindow systemregulating admissions does not cause anydent on the fundamental rights of theinstitutions in running the institution. Whileprivate educational institutions have a “rightof occupation” in running the educationalinstitutions, equally they have theresponsibility of selecting meritorious andsuitable candidates, in order to bring outprofessionals with excellence. Rights ofprivate educational institutions have to yieldto the larger interest of the community.
169. By holding common entrance test andidentifying meritorious candidates, the Stateis merely providing the merit list of thecandidates prepared on the basis of a faircommon entrance test. If the screening test isconducted on merit basis, no loss will becaused to the private educationalinstitutions. There is neither restriction onthe entry of the students in the sanctionedintake of the institutions nor on their right tocollect fees from the students. The freedom ofprivate educational institutions to establishand run institution, impart education, recruitstaff, take disciplinary action, admit
13
WWW.LIVELAW.IN
LL 2021 SC 395
students, participate in fixation of fees is inno way being abridged by the impugnedlegislation; it remains intact.”
24. It will further be apposite to note that some private
medical colleges had conducted their own counselling for
admitting students in their respective colleges and as such, the
State of Madhya Pradesh had filed a contempt petition. The
said contempt petition was decided by this Court in State of
Madhya Pradesh v. Jainarayan Chouksey and others2. It
will be relevant to refer to paragraphs 5 and 6 in Jainarayan
Chouksey (supra), which read thus:
“5. We have heard the learned counsel forthe parties at length. We observe thatmandate of our judgment [Modern DentalCollege and Research Centre v. State of M.P.,(2016) 7 SCC 353:7 SCEC 1] was to holdcentralised entrance test followed bycentralised State counselling by the State tomake it a one composite process. We,therefore, direct that admission to allmedical seats shall be conducted bycentralised counselling only by the StateGovernment and none else.
2 (2016) 9 SCC 412
14
WWW.LIVELAW.IN
LL 2021 SC 395
6. If any counselling has been done by anycollege or university and any admission toany medical seat has been given so far, suchadmission shall stand cancelled forthwithand admission shall be given only as percentralised counselling done by the StateGovernment.”
25. It could thus clearly be seen that the private
counselling by Glocal Medical College was conducted contrary
to the Notification issued by the State of Uttar Pradesh, which
Notification, in turn, was based on the judgment of this Court
in the case of Modern Dental College and Research Centre
(supra), which was decided on 2.5.2016. Not only that, but this
Court by order dated 22.9.2016 had further clarified the
position.
26. It will further be pertinent to note that the Division
Bench of the Allahabad High Court vide judgment dated
15.9.2016 had negated the challenge to the Notification dated
22.8.2016.
15
WWW.LIVELAW.IN
LL 2021 SC 395
27. In the light of this position, it was not at all permissible
for the Glocal Medical College to have conducted private
counselling. The admissions which were conducted through
the said private counselling cannot be termed as anything else
but per se illegal.
28. Though we have all the sympathies with the students,
we will not be in a position to do anything to protect the
admissions, which were done in a patently illegal manner.
29. It will be apposite to refer to the following observations
made by this Court in the case of Guru Nanak Dev University
v. Parminder Kr. Bansal and others3.
“In the present case, the High Court wasapparently moved by sympathy for thecandidates than by an accurateassessment of even the prima facie legalposition. Such orders cannot be allowedto stand. The courts should notembarrass academic authorities bythemselves taking over their functions.”
3 (1993) 4 SCC 401
16
WWW.LIVELAW.IN
LL 2021 SC 395
30. It will further be appropriate to refer to the following
observations of this Court in the case of Gurdeep Singh v.
State of J & K and others4.
“12. What remains to be considered iswhether the selection of Respondent 6should be quashed. We are afraid, undulylenient view of the courts on the basis ofhuman consideration in regard to suchexcesses on the part of the authorities, hasserved to create an impression that evenwhere an advantage is secured by stratagemand trickery, it could be rationalised incourts of law. Courts do and should takehuman and sympathetic view of matters.That is the very essence of justice. Butconsiderations of judicial policy also dictatethat a tendency of this kind where advantagegained by illegal means is permitted to beretained will jeopardise the purity ofselection process itself; engender cynicaldisrespect towards the judicial process andin the last analysis embolden errantauthorities and candidates into a sense ofcomplacency and impunity that gainsachieved by such wrongs could be retainedby an appeal to the sympathy of the court.Such instances reduce the jurisdiction anddiscretion of courts into private benevolence.This tendency should be stopped. Theselection of Respondent 6 in the sportscategory was, on the material placed beforeus, thoroughly unjustified. He was not
4 1995 Supp (1) SCC 188
17
WWW.LIVELAW.IN
LL 2021 SC 395
eligible in the sports category. He would notbe entitled on the basis of his marks, to aseat in general merit category. Attribution ofeligibility long after the selection process wasover, in our opinion, is misuse of power.While we have sympathy for the predicamentof Respondent 6, it should not lose sight ofthe fact that the situation is the result of hisown making. We think in order to uphold thepurity of academic processes, we shouldquash the selection and admission ofRespondent 6. We do so, though, however,reluctantly.”
31. Similar observations have been made by this Court in
K.S. Bhoir v. State of Maharashtra and others5.
32. The facts in the present case are somewhat similar with
the facts, which fell for consideration in the case of Mahatma
Gandhi University and another v. GIS Jose and others6.
33. In the said case, the admissions were given for M.Sc.
Computer Science course in violation of admission rules. The
High Court had directed to declare the withheld result of such
5 (2001) 10 SCC 2646 (2008) 17 SCC 611
18
WWW.LIVELAW.IN
LL 2021 SC 395
students. Reversing the judgment of the High Court, this Court
observed thus:
“10. The misplaced sympathies should nothave been shown in total breach of the rules.In our opinion, that is precisely what hashappened. Such a course was disapproved bythis Court in CBSE v. SheenaPeethambaran [(2003) 7 SCC 719]. In para 6of the judgment, this Court observed asfollows: (SCC p. 724)
“6. This Court has on several occasionsearlier deprecated the practice ofpermitting the students to pursue theirstudies and to appear in the examinationunder the interim orders passed in thepetitions. In most of such cases, it isultimately pleaded that since the coursewas over or the result had been declared,the matter deserves to be consideredsympathetically. It results in very awkwardand difficult situations. Rules starestraight into the face of the plea ofsympathy and concessions, against thelegal provisions.”
11. In the present case, the college where thestudent was admitted, in breach of allpossible rules allowed her not only tocomplete the course but also to write theexamination which was totally illegal.”
19
WWW.LIVELAW.IN
LL 2021 SC 395
34. It will further be relevant to refer to the following
observations of this Court in the case of National Council for
Teacher Education and another v. Venus Public Education
Society and others7.
“3. It is to be clearly stated that aninstitution that is engaged or interested ingetting involved in imparting a course fortraining has to obey the command of law inletter and spirit. There cannot be anydeviation. But, unfortunately, some of theinstitutions flagrantly violate the norms withadamantine audacity and seek indulgence ofthe court either in the name of mercy orsympathy for the students or financialconstraint of the institution or they havebeen inappropriately treated by the statutoryregulatory bodies. None of these groundsjustify deviation. The case at handgraphically depicts deviations but the HighCourt, putting the blame on the statutoryauthority has granted relief to the respondentinstitution which is impermissible.”
35. In the backdrop of this legal position laid down in
various judgments of this Court, it will not be possible to
consider the cases of the review petitioners sympathetically.
7 (2013) 1 SCC 223
20
WWW.LIVELAW.IN
LL 2021 SC 395
The Notification issued by the State of Uttar Pradesh on the
basis of the law laid down by this Court clearly provided that
the admissions were to be done only through the centralized
admission process. Glocal Medical College in contravention of
the said Notification conducted private counselling, which was
not at all permissible in law. The students cannot be said to
be ignorant about the Notification issued by the State of Uttar
Pradesh.
36. In such a situation, no sympathies can be shown to
such students who have entered through backdoor. Apart from
that, MCI vide order dated 27.1.2017 had discharged the said
students, who were not admitted through centralized admission
process. It is pertinent to note that 25 students admitted in the
same college, who were admitted through the centralized
admission process, were very much absorbed by the DGME in
other colleges. As such, the contention of the review
petitioners that they came to know about the discharge order
21
WWW.LIVELAW.IN
LL 2021 SC 395
dated 27.1.2017 issued by MCI only when they had filed a
petition in the High Court in 2019 does not stand to reason.
37. Insofar as the contention with regard to the interim
order passed by this Court dated 20.3.2017 is concerned, the
same would clearly show that though the students were
permitted to appear in the examination, their results were
directed not to be published. There is no other order modifying
the said order.
38. It is difficult to appreciate as to how the results of the
students were declared for the 1st year MBBS examination, how
they were admitted in the 2nd year MBBS course and how they
cleared the 2nd year MBBS examination, despite the fact that
MCI had discharged the students vide order dated 27.1.2017.
39. Insofar as the observations of this Court in order dated
18.9.2017 in the writ petition filed by Glocal Medical College
challenging the discharge order is concerned, the observation
could not be construed to have vacated or modified the specific
directions issued by this Court on 20.3.2017.
22
WWW.LIVELAW.IN
LL 2021 SC 395
40. In the result, the Review Petitions are without merit
and as such dismissed. Consequently, all pending
applications, including the application(s) for
intervention/impleadment shall stand disposed of.
…..….......................J.[L. NAGESWARA RAO]
…….........................J.[B.R. GAVAI]
…….........................J.[KRISHNA MURARI]
NEW DELHI;AUGUST 17, 2021.
23
WWW.LIVELAW.IN
LL 2021 SC 395
